Albany Law School professor talks John Eastman’s argument

Stephen Clark, law professor at Albany Law School

On Aug. 17, The Panther spoke to Albany Law School professor Stephen Clark to gather his thoughts on the Newsweek opinion written by Chapman law professor John Eastman. Since the piece’s Aug. 12 debut, Eastman has received national criticism for an American citizenship argument many consider to have racist undertones. While Clark mentioned that Eastman was investigating a legitimate academic question, the problematic sources he used left the door open to such criticism. Here’s Clark’s analysis.

Clark’s answers have been lightly edited for clarity and stylistic standards.

Q: Was there any instant reaction upon reading Dr. Eastman’s argument?

A: Well, I had an instant reaction because I had written on the topic before in the case of Ted Cruz. The view I formed then was that these arguments are overused and that that provision of the Constitution isn’t nearly as broad as some people have asserted that it was, and so I was skeptical. Professor Eastman also didn’t talk very much about that clause – he preferred to talk about the 14th Amendment, but that’s not actually the clause that’s in issue. 

Q: Do you feel the same kind of principles apply in your argument for Ted Cruz’s citizenship as to Kamala Harris?

A: I do. If anything, the case against Cruz was stronger in this case because he was not born in the United States. The idea that we need this really grossly overbroad disqualification out of fear of somebody being disloyal; there are people who everybody agrees are not eligible to be president, even under my narrow view of that clause. 

The idea that we, the voters, need to be protected from ourselves from choosing to elect Arnold Schwarzenegger because he might secretly be disloyal is just preposterous. We don’t need this broad-sweeping restriction on voter autonomy to select a leader in order to protect against this phantom concern about disloyalty. So I was a little surprised to see an attempt to rehabilitate that disqualification and claim that it’s serving some legitimate function. I seriously doubt that Kamala Harris has divided loyalties and that we need to disqualify her, because we can’t be confident that she’s loyal to the United States. She was born in California and lived here her entire life. 

Q: People on social media were associating Eastman’s piece with “birtherism.” Newsweek released an editor’s note apologizing for any racism or xenophobia created as a result of the piece. Do you believe the way Eastman’s argument was structured lends itself to that kind of criticism?

A: I mean, I’m not going to say that Eastman’s a racist; I’m not going to say that. As I said, there is a legitimate academic question here about how you interpret the 14th Amendment. I don’t think it’s particularly the relevant clause as I’ve explained, but in other contexts that is certainly a legitimate constitutional inquiry. 

You leave yourself vulnerable when you’re making this kind of argument. You rely on sources from the 1880s, you don’t deal with the fact that’s the Chinese Exclusion Acts era and try to explain why those sources nevertheless are legitimate. There’s a little bit of skirting around some racist sources in the piece, I think. One thing we don’t often realize is that among the great civil rights acts that were enacted in the mid-1960s – the Civil Rights Act of 1964, the Voting Rights Act, the Fair Housing Act – often overlooked is the Immigration Act of 1965 as another civil rights act, because it finally removed the racist immigration limitations that had been in the law since that Chinese Exclusion Act era. So if you’re writing this column and the sources that you’re using are from 1880 to 1965, that is an era where American immigration law was overtly racist. I think you do have a duty to address that, and I don’t think that he did and that opened him up to some criticism in that regard.

In fact, his theory seems to be that Kamala Harris isn’t even a U.S. citizen and, so I assume, would be eligible to be deported to Jamaica or India, because the argument he makes isn’t based on the presidential disqualification clause – it’s based on the citizenship clause. It’s a much broader attack that he’s making than just on her ineligibility to be president or vice president or even senator as he mentions; he’s really arguing that she’s not a citizen at all, even today.

Q: In the future, in discussing citizenship amongst political leaders, how can scholars better approach the interpretation of the Constitution? 

A: You know, he doesn’t make overt (references) to the birtherism and that sort of thing, but you have to be aware as a scholar when you’re writing in this area that this is the context you’re writing, and there are ways you can write your analysis that acknowledges the racism that has been out there in this debate, and repudiate and condemn that and make it clear that you’re focused just on the legal question here. So there are things he could’ve added to the column. The idea that he should be fired from his job is just over-the-top for this column, but I can see why people had a negative reaction to the column and have some racism concerns.